### STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2023 CA 0023 BRUCE CHILDERS VERSUS 

### LAUREL LAKES ESTATES HOMEOWNERS ASSOCIATION, INC.

DATE OFJUDGMENT..

## NOV 3 0 2023

ON APPEAL FROM THE NINETEENTH JUDICIAL DISTRICT COURT PARISH OF EAST BATON ROUGE, STATE OF LOUISIANA

NUMBER 099089, SECTION 25 HONORABLE WILSON E. FIELDS,JUDGE

Taylor Dunne Thomas D. Gildersleeve Leah C. Cook Baton Rouge, Louisiana Edward J. Laperouse, II Laura E. Marcantel Trenton C. Ball Christopher M. Patin Baton Rouge, Louisiana Counsel for Plaintiff - Appellant Bruce Childers

Counsel for Defendant - Appellant Laurel Lakes Estates Homeowner's Association, Inc.

BEFORE: THERIOT, CHUTZ, AND HESTER,JJ. Disposition: AMENDED AND,AS AMENDED,AFFIRMED.
Q5 

## 3. conc.-(- SCHUTZ,J. Defendant -

in - reconvention, Bruce Childers, appeals the trial court' s 

### judgment, concluding that he violated the landscaping maintenance covenant set forth in a subdivision's declaration and awarding a fine and attorney fees in favor of plaintiff -

in - reconvention, Laurel Lakes Estates Homeowner's Association, Inc. the HOA). 

### The HOA also appeals, seeking an increase in the arnount ofattorney 

### fees awarded. Forthe following reasons,we amendthe amount ofthe attorney fees and, as amended, affirm the trial court' sjudgment.

FACTUAL AND PROCEDURAL BACKGROUND 

### Childers instituted this lawsuit on August 28, 2020, by filing a petition for declaratory relief,wherein he averred that five amendments to the subdivision' s Declaration of Protective Covenants and Restrictions for Laurel Lakes Estates" the Declaration) were not passed in accordance with the process outlined in the Declaration and/or violated the terms of the Declaration. He asked that the court declare the amendments invalid and of no effect, award damages for all past 

### charged assessments and the costs ofprosecuting the suit for declaratoryjudgment. The HOA answered the lawsuit and, on October 23, 2020, asserted a 

### reconventional demand, averring that it had imposed a fine against Childers in the 

### total amount of $

3,300.00 that Childers did not pay. In addition to recovery ofthe fine, 

### the HOA requested attorney fees. Childers answered the reconventional 

### demand, generallydenyingthe HOA's allegations. In a judgment, signed on January 24, 2022, the trial court subsequently 

### granted amotion for partial summaryjudgmentfiled bythe HOA and dismissed all of Childers' claims on the principal demand. On appeal, this court concluded that 

### Childers' claims challenging four ofthe five amendments to the Declaration were prescribed, and the other amendment was valid and enforceable. Thus, the trial

2

### court'sjudgment,dismissing all ofChilders' claims based on its conclusion that all

the amendments to the Declaration were valid and enforceable, was affirmed. See Childers v. Laurel Lakes Estates Homeowners Ass' n, Inc.,

### 2022-0936 (La. App. 1st Cir. 5124123), 368 So.3d 1123. Insofar as the HOA' s reconventional demand, the trial court overruled a 

### peremptory exception raising the objection ofprescription asserted by Childers and 

### proceeded to a three-day trial at which testimonial and documentary evidence was 

### adduced.Thetrial courtsubsequently issued oral reasons forjudgment,findingthat Childers violated the landscaping maintenance covenant of the Declaration, as 

### amended, and awarded afine of $ 100.00to the HOA. It also imposed attorney fees against Childers and in favor ofthe HOA in the amount of $ 69,225.00. Ajudgment 

### in conformity with the trial court's rulings was signed on May 13, 2022. The trial court denied the HOA' s limited motion for new trial, which sought an increase in 

### the amount ofattorney fees. Both Childers and the HOA have appealed. PRESCRIPTION On appeal, 

### Childers initially challenges the trial court's denial of his peremptory exception raising the objection of prescription, asserting that the 

### HOA's reconventional demand was untimely. As such, Childers contends that the 

### HOA is not entitled to a fine, suggesting that his property should be released from the landscaping maintenance covenant set forth in the Eighth Amendment to the Declaration. 

### Initially,we note ajudgment overruling an exception is generally considered an interlocutory judgment and is not appealable. See La. C.C.P. arts. 1841 and 2083. However, when an unrestricted appeal is taken from a final judgment, the 

### appellant is entitled to seek review ofall adverse interlocutory rulings prejudicial to him in addition to the review ofthe final judgment. State Through Louisiana

3

### Bd. ofEthics a Dumas, 2023-0013 ( La. App. 1st Cir. 612123), 370 So.3d 55, 58

n. 1. 

### The objection ofprescription may be raised by a peremptory exception. La. C.C.P. art. 927(A)(1). 

### Ordinarily, a party urging the exception ofprescription bears 

### the burden of proving that the prescriptive period has accrued. Newton v. St 

### Tammany Fire Dist.No. 12, 2020-0797 ( La. App. 1 st Cir. 2/ 19/21), 318 So.3d 

### 206, 210. When evidence is introduced atthe hearing,the trial court's findings are reviewed under a manifest error standard of review. But even if evidence is 

## introduced,when there is no dispute regarding material facts, the reviewing court applies a de novo standard ofreview, giving no deference to the trial court's legal 

### conclusions. See Wilson v. Whitfield,2022-0488 (La. App. 1 st Cir. 2124/23), 361 So.3d 512, 515. 

### Childers maintains that the landscaping maintenance covenant constitutes a building restriction and, as such, is subject to the liberative prescription of two years set forth in La. C.C. art. 781. Article 781 states.

No action for injunction or for damages on account of the 

### violation ofa building restriction may be brought aftertwo years from the commencement of a noticeable violation. After the lapse of this period, the immovable on which the violation occurred is freed ofthe restriction that has been violated. The HOA relies on La. C.C. art. 3499 to assert that its reconventional 

### demand is subject to a ten-year prescriptive period. According to Article 3499, Unless otherwise provided by legislation, a personal action is subject to a liberative prescription often years." 

### The undisputed evidence established that the HOA created a deficiency reportnoting landscaping maintenance covenantviolations on Childers' property at

some time prior to the October 23, 

### 2018 annual meeting of the HDA. Childers 

### asserts that the HOA's reconventional demand seeking a fine constituted an action

11for damages. Since the action was not filed until October 23, 2020, it was



### untimely, having been brought more than two years from the commencement of the noticeable and apparent violation. Building restrictions, or " restrictive covenants" 

### as they are generally known 

### in the common law and occasionallytermed in Louisiana, are charges imposed by the owner of an immovable in pursuance of a general plan governing building standards, specified uses, and improvements. See La. C.C. art. 775; Fern Creek Owners' Assn, Inc. v. 

### City of Mandeville, 2008- 1694 ( La. 

### App. 1st Cir. 06/30/09), 21 So.3d 369, 377. The Louisiana Homeowners Association Act, La. R.S. 9: 1141. 1- 1141. 9 ( the LHAA), became effective on June 16, 1999. See 1999 La. Acts, No. 309. The 

### LHAA does not affectthe validity or superiority ofany provision ofa community document and applies onlyto the extent that community documents are silent. See La. R.S. 9: 1141. 3(A). 

### The statutory scheme established by the LHAA mandates that community documents prevail over the LHAA, except to the extent that 

### community documents are silent. Under the LHAA, La. C.C. art. 783 was also amended to provide that the [ LHAA] " shall supersede any and all provisions _.. Title [ V. 

### Building Restrictions] in the event of a conflict." See Fern Creek Owners' Ass' n, Inc., 21 So.3d at 377. The Declaration, as amended, 

### is a community document. See La. R.S. 9: 1141. 2(3). According to the pertinent provisions ofArticle 11, Item 4(h)( 1) ofthe Declaration, as set forth in the Eighth Amendment: 

### Any ... fine not paid within ... [ 30] days after the due date shall bear interest.... 

### The HOA may bring an action at Iaw against the Owner personally obligated to pay the same or foreclose the ... lien and privilege against the Owner' s Estate. It is undisputed that when Childers purchased his home, he did so subject to the provisions set forth in the Declaration. And while he called into question the

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## proprietyofthe Eighth Amendment in his principal demand,seeking adeclaratory

judgment holding that the amendmentwas invalid,thetrial courtconcluded to the contrary, and this court affirmed. Thus, the provisions ofArticle 11, Item 4(h)( 1) of 

### the Declaration, as amended, are applicable, and the HOA' s action against Childers to pay the fine assessed against him is a personal obligation. Because the obligation to pay any properly assessed the fine against him in accordance with the amended provisions of the Declaration is personal, the applicable prescriptive 

## period isten years as provided by La. C.C. art. 3499. See Southern Trace Prop. Owner's Assn v. Williams, 52,653 ( 

### La. App. 2d Cir. 9/25/ 19), 280 So.3d 826, 82934. 

### See also Eastover Prop. Owner's Assn, Inc. a Cochrane, 2002-1502 La. App. 4th Cir. 05/21/03), 848 So.2d 710, 712- 13, writ denied, 2003- 1604 ( La. 11/ 21/ 03), 860 So.2d 544 ( given the terms of the subdivision' s act of restriction, 

### which setforth the nature ofthe assessments as being personal to theowners ofthe property, the 10 -

year prescriptive period of Article 3499 applied).' 

### Accordingly, the trial court correctly overruled Childers' exception ofprescription directed atthe HOA' s reconventionaI demand. IMPOSITION OF FINE 

### Childers asserts the trial court erred in concluding that he violated the landscaping maintenance provisions set forth in the Eighth Amendment to the Declaration. Those provisions state in relevant part: Landscape maintenance: Each Estate Owner shall be responsible for 

### the maintenance ofall landscaping on his Estate and for maintaining his Estate, residence and driveway in a clean and orderlyfashion atall titres, and the owner shall be responsible for paying all costs of said maintenance and for anysuch repairs which may be necessary.

1 Section 4 of 1999 La. Acts, No. 309, expressly provides that the provisions ofthe LHAA legislatively overrule the case of Brier Lake, Inc. v. Jones, 97-2413 ( La. 4/14198), 710 So.2d 1054, are remedial, and shall apply bothprospectively and retroactively.Thus, Childers' reliance on BrierLake to suggest the landscaping maintenance covenantconstitutes a building restriction subject to the 2 -

year prescriptive period set forth in Article 781 is misplaced. 2Estate Owners shall be responsible 

### for maintaining their own



### landscaping and keeping Estates mowed at all times and free from rubbish,trash, excess building materials, debris and noxious weeds. If 

### landscaping is not maintained, ifweeds or grass are allowed to grow in excess of 8", 

### or ifrubbish.ortrash, etc. is allowed to remain on any 

### Estate in such amounts as shall be considered unsightly ( in the sole discretion ofthe [Architectural Control Committee (ACC)]), the ACC 

### may levy a fine/penalty in the amount of $100 against Estate Owner. 

### Ifthe unsightly condition remains for more than 7 days after a fine is 

### levied and notice given to the Estate Owner, the ACC may levy an additional $ 100 fine for each [ 

### 7 -day] period until the condition/violation has been rectified. Notice of such fine will be sent 

### via email and/orattached to Owner's monthly statement. 

### Building restrictions imposed on a subdivision may be likened to a contract among the property owners andthe developer. Doyle v. Lonesome Dev., Ltd.Liab. Co., 

### 2017-0787 (La. App. Ist Cir. 7118118), 254 So.3d 714, 728, writ denied, 2018- 1369 018 1369 ( La. 11114118), 

### 256 So.3d 291. Documents establishing building restrictions
are subject to interpretation and enforcement as contracts. Id Contracts have the effect of law between the parties and the courts are to 

### interpret them according to the common intent ofthe parties. See La. C.C. arts. 1983, 2045. When the words of a contract are clear and explicit and lead to no

absurd consequences, 

### no further interpretation may be made in search of the parties' intent. La. C.C. art. 2046. Parties are free to contract for any object that is lawful. La. C.C. art. 1971. Contracts, subject to interpretation from the instrument' s four corners 

### without the necessity ofextrinsic evidence, are to be interpreted as a matter oflaw. Hampton P. Hampton, Inc.,

### 97- 1779 (La. App. 1st Cir. 6/29/98), 713 So.2d 1185, 1189-90. But the trial court' s factual findings pertinent to the interpretation of a contract are not to be disturbed unless manifest error is shown. See Hornbeck Offshore Operators, LLC P. 

### Cross Grp., Inc., 2016-0174 ( La. 

### App. 1st Cir. 10/31116), 207 So.3d 1141, 1146, writ denied, 2016-2095 ( La. 1] 9/ 17), 214 So.3d 872.

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### The trial court concluded that Childers did not receive notice of the

imposition of a $ 

### 100.00 fine until receipt ofthe October 30, 2019 certified letter 

### from the ACC, which advised Childers that the fine had begun to accrue as of April 3, 2019 for a total amount due of $ 3,300.00. Because ofthe lack ofnotice, 

### the trial court limited the HOA's recovery from Childers to the $ 100.00 fine. On 

### appeal, the HOA has not challenged either the trial court's factual finding that notice was not received by Childers until the October 30, 2019 letter or the quantum ofthe fine and, thus,these conclusions are not subject to review. 

### In his appeal, Childers likewise does not assign error to the quantum ofthe fine imposed. Instead, 

### he contends that the trial court erred in concluding he violated the landscaping maintenance covenant so as to warrant the imposition of any fine at all. The record contains sufficient evidence to support the trial court' s factual 

## findingthat Childersviolated the landscaping maintenance covenant.According to the October 30, 2019 letter, the April 3, 2019 letter to Childers was attached in which the ACC had advised Childers that, in addition to the need to submit a 

### landscaping plan for ACC approval, a "[ mlulch pallet cannot be stored where visible from the street." Under Article I1, Sec. 3( b)( 1), the estate owner is 

### responsible for keeping the estate free from rubbish, trash, 

### excess building materials and that if "rubbish or trash, etc." 

### is allowed to remain on any estate in such amounts as shall be considered unsightly in the sole discretion of the ACC, 

### the ACC may levy a fine/penalty in the amount of $100.00. Although Childers 

### suggests that the pallet of mulch is indicative of landscaping maintenance and cannot be considered " rubbish or trash," the Declaration leaves to " the sole discretion" ofthe ACC the determination ofthe amount of "rubbish or trash, etc." that is " considered unsightly." 

### Childers acknowledged having had a pallet with 50

N.

## bags ofmulch inhisyard.Hetestifiedthatthepalletwasstored behind abush bya

parking pad on the east side ofthe house and admitted the pallet was present for 

### two to three weeks. Childers described that the location ofthe stored pallet fronted 

### the street. This testimony constitutes a reasonable factual basis to support the trial 

### court's finding that Childers violated the landscaping maintenance covenant. Therefore, the trial court correctly awarded tothe HOAthe fine of $ 100.00. ATTORNEY FEES 

## Attorney fees are recoverable when specifically authorized by a contract. H&E Equip. Servs., Inc. u. Sugar & 

### Power Intl,LLC,2016.1070 (La.App. 1st Cir. 2/ 17/ 17), 215 So - 3d 446, 451. The amended Declaration, which we interpret and enforce as a contract, see Doyle, 254 So.3d at 72$, provides in Article VI, Paragraph 1( a):

The [ HOA], [ ACC], 

### or any Owner, shall have the right to enforce, 

### by any proceeding at law or in equity, all restrictions, conditions, covenants, reservations, easements, liens and charges now 

### or hereafter imposed by the provisions ofthis Declaration. The non - prevailing party to any proceeding at law or in equity shall be 

### responsible forall costs, including [attorney] fees. In fashioning its attorneyfees award of $ 69,225.00, the trial court stated: I know that the [ HOA] argued ... that the [ attorney] fees determination] 

### does not hinge upon whether or not they are reasonable .... 

### However, the court has to have something to go offto know whether or not the hours that were put on the paper were actually hours as it relates to reasonableness ofthis particular case. So 

### in calculating the [attorney] fees, during the trial it was mentioned that each homeowner was assessed $ 1500 for this litigation. I asked ... Childers ... whether ... he paid that $ 1500. And he paid the $ 1500 towards the litigation that is against him. So that gave the court reason to believe that all ofthe homeowners paid their $1500. And [there are] 43 lots .... [ 

### W]hen I calculated 1500 times 43 lots, I carne up with 

### 2 Atthetimethe HOA imposed thefine,the onlyoutstandingviolation theACC claimed existed was that "[ a] new professional landscape plan needs to be submitted to the ACC for approval and then implemented by owner." Childers asserts that because nothing in the applicable version of Article II, Sec. 3( b)( 1) requires that he submit new landscaping plans or authorizes the imposition ofa fine for an owner's failure to submit and obtain approval of such landscaping plans, the trial courterred in finding him liable forthe $100.00 fine. Because a reasonable factual basis exists to support the trial court' s imposition ofthe $ 100.00 fine, we find it unnecessary to reach these issues and pretermit such a discussion.

9

### 64,500 for [attorney] fees. Plus I calculated the time that we spent here in court on this case. I understand the [ HOA] had three lawyers 

### representing [it] on this matter. But the court looked at the amount of time ... that was spent in trial [ which] was 13 [ and] '/ z hours. ... Thirteen and one-half hours] times $350 ... [ comes] up to $4, 725 ... for a total of ... $

69,225. Both Childers and the HOA have appealed the trial court's award of 

### 69,225.00 in attorney fees.' Childers contends the award is unreasonable and excessive, while the HOA maintains that, pursuant to the provisions ofArticle VI, Paragraph 1( a) ofthe Declaration, it is entitled to $ 109,033.41, the full amount its
attorneys charged. 

### The trial court has much discretion in fixing an award ofattorney fees, and its award will not be modified on appeal absent a showing of an abuse of discretion. But attorney fees must be " reasonable." The amount is regulated by the 

### Rules of Professional Conduct. MIE Properties - La, L.L.C. v. Carey, 2016-0763 La.App. 1st Cir.2/17/17), 213 So.3d 1274, 1282. Rule 1. 5( a) 

### of the Rules of Professional Conduct provides the following 

### factors to determine attorney fees:

1) the time and labor required,the novelty and difficulty ofthe questions involved, and the skill requisite to perform the legal service properly; 2) the likelihood, if apparent to the client, that the acceptance 

### ofthe particular employment will preclude other employment by the lawyer; 

### 3) the fee customarily charged in the locality for similar legal services; 4) the amount involved and the results obtained; 

### 3 Childers assigned as error the trial court's interlocutory ruling, which denied his motion to amend his First amended petition fordeclaratory reliefto expressly allege entitlement to attorney fees which, he asserted, was an implicit request in his earlier prayer for costs. Childers was unsuccessful in his appeal of the trial court's dismissal of his declaratory relief claims, see Childers, 368 So.3d at 1134, and we have found no merit in his challenge of the imposition of the $ 100.00 fine against him. Therefore, as the non - prevailing party, Childers is not entitled to attorney fees under Article VI, Paragraph 1( a) of the Declaration. Thus, the issue of his entitlement to attorney fees is moot. See Cat's Meow, Inc.v City ofNew Orleans, 98-0601 ( La. 10120198), 720 So.2d 1186, 1193 ( Courts will not decide abstract, hypothetical, or moot controversies, or render advisory opinions. To avoid such questions, courts require cases submitted for adjudication to be justiciable and ripe for decision. A justiciable controversy connotes an existing actual and substantial dispute.).

105) 

### the time limitations imposed by the client or by the circumstances; 

### 6) the nature and length ofthe professional relationship with the client;

7) the experience, reputation, 

### and ability of the lawyer or 

### lawyers performing the services; and 8) whetherthe fee is fixed or contingent. 

### While we find the trial court's approach in fashioning its award innovative, in light ofthe evidence in this record, we conclude that the amount of $ 69,225.00 

### is unreasonably excessive. Thus, we turn to the evidence to determine an amount ofreasonable attorney fees. See MIE Properties - La,L.L.C.,213 So.3d at 12$2. 

### Despite the zealous advocacy ofthe parties, the litigation was not complex although areas of the law were not fully settled. Laperouse APLC ( Laperouse) 

### provided to the HOA its primary representation. 

### Although Laperouse clearly expended much time and effort, the redaction of all the entries in the invoices 

### delineating the activity it undertook makes it impossible for this court to assess whether the efforts were necessary and proper. Furthermore, the HOA was awarded only $ 100.00 ofthe $3, 300.00 fine it sought from Childers. Moreover, $ 19,246.50 of the $ 109,033.41 ofthe attorney fees that the HOA 

### contends constitutes a reasonable attorney fee is attributable to Christopher L. 

### Whittington, the attorney who acted as the HOA's corporate representative to assist Laperouse. According to Whittington, the HOA found it "more economical" to hire him to gather information since, as a homeowner in the Laurel Lakes Estates subdivision, he had " mare access" to that information. Whittington testified 

### that because the events giving rise to the litigation occurred before he lived in the
subdivision, 

### it made gathering information to respond to Childers' discovery challenging." 

### His hourly rate in rendering services on behalf of the HOA was 

### 340.00. Whittington forthrightly acknowledged that he charged the HOA for all appearances he made, including the time he spent in preparation ofand attendance

11

### at his HOA corporate representative deposition. He also charged for the time he

was present at the depositions of HOA board members Gina Callahan and Spencer 

### Callahan atwhich Laperousealso hadtwo attorneys presentdefendingthe HOA. The fees charged to the HDA by Laperouse and Whittington were at fixed

rates. 

### In addition to Whittington's hourly rate of $340.00, Laperouse, which 

### applied reductions to its customary rates, charged the HDA the hourly rate of 285.00 for the lead attorney and $ 

### 195.00 for the lead associate attorney. Whittington testified that he had 29 years ofexperience and that Laperouse's lead 

### attorney had a similar length of experience as well as significant homeowners association litigation experience. No other explanation was offered for the charges set forth in the Laperouse invoice.' 

### While unsuccessful in collecting the entire fine the HOA sought to collect, it is evident from the record that much time and diligent efforts were expended in the 

### attorneys' collection work,Additionally,we note that in pursuing representation on 

### behalf of the 144A, other advocacy opportunities were precluded particularly to Laperouse whose homeowners litigation expertise resulted in a more direct appreciation of the factual issues. 

### Considering the factors required in the

While the redacted invoice established a third biller (Michelle Crosby), who charged the HOA at the rate of $

275.00/hour, nothing in the testimony identified who she was or the activity she undertook in representing the HOA. 

### 5 The HOA maintains that in fashioning reasonable attorney fees, its defense against Childers' claims on his principal demand should be considered, noting that Laperouse charged it 64,459.51 asofthe date ofthe hearing on the motion forpartial summaryjudgment. But despite the HOA's having alleged entitlement to an award ofattorney fees,thejudgment, which granted the motion forpartial summaryjudgment and dismissed all ofChilders' claims against the HOA, did not award attorney fees. Because the HOA failed to seek attorney fees in conjunction with the trial court's rendition ofthe final judgment rejecting all of Childers' claims in his principal demand, see La. C.C.P. art. 1915(A)(1), it cannot do so now. See La. R. S. 13: 4231 ("[ A] valid and final judgment is conclusive between the same parties, except on appeal or other direct review ... [ i]fthejudgment is in favor ofthe defendant, all causes ofaction existing at the time of final judgment arising out of the transaction or occurrence that is the subject matter of the litigation are extinguished and the judgment bars a subsequent action on those causes of action.'). Thus, in our calculation ofreasonable attorney fees, we consider only the attorney fees the HOA incurred in conjunction with its claim for the imposition of a fine for Childers' violation ofthe landscaping maintenance covenant.

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### determination ofan amount ofreasonable attorney fees, we conclude an award of

15,000.00 in attorney fees to the HOA is appropriate in this case. Therefore, the trial court's judgment is amended to award the amount of $

### 15,000.00 in attorney fees to the HOA. 

### On appeal, the HOA seeks attorney fees for representation before this court. 

### Generally, an increase in attorney fees should be awarded when a party who was awarded attorney fees in the trial court is forced to and successfully defends an appeal. Osborne v. Ladner, 96-0863 (La.App. 1st Cir. 2114197), 691 So.2d 1245, 

### 1259. Since we have reduced the amount ofthe award ofattorney fees, the HOA was only partially successful in defending the appeal. As such, we decline to make an additional award ofattorney fees.DECREE For these reasons, we amend the trial court'sjudgment to award $ 15, 000.00 

### in attorney fees to the HOA. Thejudgment is affirmed in all other respects. Costs of these appeals are assessed one-half to Bruce Childers and one-half to Laurel Lakes Estates Homeowner' s Association, Inc. AMENDED AND, AS AMENDED, AFFIRMED.

Although the HOA successfully defended Childers' appeal ofthe partial summaryjudgment, it failed to file an answer and request attorney fees in that appeal and, thus, is not entitled to such relief in these appeals_ 13